Old Law, New Law

A Second Australian Legal Miscellany

Old Law, New Law follows the author’s Lawyers Then and Now in offering a miscellany of genuine legal stories drawn from Australian legal history as well as its modern law. If there is any change of focus, this work looks at the people of the law through the prism of established or changing legal doctrines and processes.

The chapter headings will show that quirky humanity intrudes into the most doctrinaire of fields (such as statutory interpretation and tort law) and that law intrudes into every facet of human life (including food, drink and sex). As in the former work, there is much comparing of attitudes past and present, while observing the underlying constancy of human values and biases within every corner of the law.

Readers will discover:

the constitutional distinction between financial and moral bankruptcy

the New South Wales judge who responded to a submission on behalf of the Queensland Commissioner for Railways by stating “You don’t think we are going to let you banana-benders get away with that, do you?”

Chief Justices who entered dodgy marriages, committed contempts of court or were described as “sexy” by litigants they encountered

judges who upheld appeals from their own judgments

strange aspects of matrimonial law and lore, including “wife sales” and forced outcomes of the biblical “one flesh” concept

some (rare) sightings of appellate judges abusing each other

several instances of cannibalism and the law.

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From the Launch...

"A glance at the index of names shows that many of these anecdotes relate to judges and lawyers who are still in the world and many still engaged in their careers. ... Those who know Keith well do not need my persuasion, and I suggest that every lawyer in mid-career or seriously preparing for a career should read, needs to read Keith Mason’s books, both of them, and keep them on a shelf somewhere handy next to Owen Dixon’s Jesting Pilate. They are full of lessons gentle and sharp about how to behave, the wisdom of not giving in during moments of rage or disdain, and the perils of dropping one’s guard. Weaknesses and eccentricities and lapses of courtesy may be talked about for the rest of one’s life, and for long afterwards, in some cases for centuries. Keith teaches many lessons in what to do, and what to avoid doing, showing why. With more than pleasure, with great enthusiasm I commend Keith Mason’s book to its first readership of lawyers, and to a further and wider readership of people who would like to understand what lawyers are, what they do and how human their institutions are." Read launch speech...

From the Launch Speech by The Hon John P. Bryson QC

CONTENTS

Preface

Part 1: Men and Women

1. Women (and Men) in the Law

Legal disabilities of women and the struggle to overcome them “One flesh” in marriage Women and juries Valuing a woman’s marriage prospects

2. Matters Matrimonial

Getting married Getting out of marriage legally: void and voidable marriages “Getting out” by other means such as wife sale and bigamy Dissolution of marriage

3. A Little Chapter about Sex

Changing attitudes since the 1960s Lovers who fall out The language of sex Sexy Chief Justices

11. Getting Technical

Part 4: Guarding Patches

12. Hierarchies and Precedents

Duty to follow precedent Tension between the tiers Riverine, nautical and botanical metaphors Absence of precedent

13. The Rule of Law: Courts and the Executive

The rule of law The Rum Rebellion The Victorian government defies its Supreme Court in 1865 Sir Henry Parkes defies the Supreme Court of New South Wales in 1888 Governments pushing judges to the limit The Tait saga Threats to the rule of law from others, notably judges

Part 5: Public and Private Wrongs

14. Exclusionary Conduct: Colourful Aspects of Constitutional Law

Attempts to exclude interstate trade, commerce and intercourse Attempts to exclude non-European immigration Attempts to exclude Egon Kisch, Communists and other European “undesirables” Attempts to exclude interstate lawyers and litigants Attempts to exclude refugees and boat people

15. Torts: Injuries to Body or Reputation

Negligence claims Defamation

Bibliography Table of Cases Table of Names General Index

REVIEWS

This is his second “miscellany”, continuing the work begun in “Lawyers: Then and Now.” In his preface, the author describes the book as his collection of stories “about Australian law and legal history drawn from the decided cases, the statute book, historical writings and oral history known to me.” This book, like Peter Heerey’s “Excursions in the Law” is intended to provide a mix of interesting anecdotes laced with plenty of humour and the combination works well to provide the reader with a book capable of delivering plenty of laughs. … This book is readable, generous in its content, and rich in variety. It is highly recommended. Read full review...

Greg Geason, Law Letter, Law Society of Tasmania, Autumn 2017

Old Law, New Law: A Second Australian Legal Miscellany is a complement to Mason’s earlier volume Lawyers Then and Now: An Australian Legal Miscellany… It is a delightful read. With his deft combination of legal history, social commentary and ever-present appreciation of the humour in the historical record, Mason’s style is part of the book’s charm. So too is its integration of Australia’s colonial past into key themes of Australia’s (continuing) legal development. On this last point, Old Law, New Law fits within a welcome trend in recent legal scholarship to narrate, and recognise the importance of, the colonial and pre-Federation history of this country. … Whether picked up to be read from start to finish, or for dabbling here and there, it is a book worth acquiring. Read full review...

Fiona Roughley, Bar News, Autumn 2015

This book is a selection of humorous and controversial extracts and anecdotes from the law in Australia. It gives a particularly Australian rendering of legal oddities and plainly draws some guidance from Robert Megarry’s Miscellany at Law. There is an array of topics covered in an easy to read style. There is mention of the case of Quick v Quick [1953] VLR 224, which concerned a couple that decided to marry on the spur of the moment. Also Windeyer J was confronted with the odd situation of having to construe legislation he had assisted in drafting saying “... parents do not always well understand their children. Draftsman are no different.” There is a very good selection of “judicial insults” such as where counsel stated that he had concluded the “first branch” of his argument and the judge responded “twig would be more appropriate ... would it not?” This book has something for everyone and it is a good source of light relief.

Queensland Law Reporter – 29 May 2015 – [2015] 20 QLR

Written by former NSW Solicitor-General and Court of Appeal President the Hon Keith Mason, this book is a follow-up volume to his book, Lawyers Then and Now. The book is worth reading not only for the unusual subjects but for the many entertaining and memorable phrases the writer uses. … This is a book that should appeal to lawyers and anyone interested in Australian law and the often lesser known aspects of Australian legal history and legal lore. Read full review...

Scott Whitechurch, InPrint, Law Institute Journal Victoria, May 2015

This is again, like the First Australian Legal Miscellany, an interesting and entertaining book. Detail of footnoting and reference is combined in this work with light-hearted matters of great interest. The book is divided into five Parts: Men and Women, Essentials of Life, Law’s Ways and Means, Guarding Patches, Public and Private Wrongs. There is no hesitation in dealing with matters that may be considered controversial, but referencing is relied upon, throughout. The table of names … is itself an interesting read: Barwick, Boothby, Dixon, Gleeson, Griffith, Heydon, Isaac, Kirby and Meagher ‘dominate’ the book in terms of the number of references for each. Read full review...

Dominic Katter, Hearsay, March 2015, 72

… There is much to enjoy in it. It is amusing, thoughtful, instructive and subtle. It is also very well written with Mr Mason’s usual precise and pellucid style. The pleasure of reading it is increased by its array of hidden gems in its text, footnotes and even in its index with its humorous categorisation and well placed jokes.In all, it is an important contribution to Australian legal literature. Through its aggregation of anecdotes concerning Australian legal life, a characterisation of its practitioners emerges, at once, colourful, witty, brave and intelligent.Old Law, New Law is another triumph for Mr Mason. Like its predecessor, it is entitled to stand next to Mr Megarry’s five works in this genre. One might hope that the increasing years and the expanding volume of the practice of law in this country may provide sufficient material for a third edition in the not-too-distant future.It would be remiss to omit to mention that the publisher is The Federation Press. It stands above any other legal publisher in Australia in a niche at the apex of intellectual legal publishing. Whilst other legal publishers produce many excellent and essential works for the busy practitioner, The Federation Press focuses on intellectual legal publications which carry the law forward, and the legal profession is all the better for that. A steady stream of quality legal works now emanate from it and, although they may not all be day-to-day reference works for the practicing lawyer, they are almost all excellent examples of legal writing which substantially enhance the bank of legal knowledge in this nation. Read full review...

Roger Derrington QC, Queensland Legal Yearbook, 2014

The Federation Press continues to maintain its position as the pre-eminent Australian Legal Publisher by producing extremely high quality works across a broad range of areas. This is another triumph by Mr Mason who has again produced an excellent work which belongs on every legal practitioners' shelves. It is as timeless as are the corresponding works of Sir Robert Megarry. A person would do themselves a disservice if they did not acquire a copy and, as it is close to Christmas, a copy for any of their Lawyer friends. Read full review...